ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

H. Erskine Cherry				Jeffrey A. Modisett

Anderson, Indiana				Attorney General of Indiana

							Rachel Zaffrann

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

TIMOTHY D. ELSTEN,				)

							)

	Appellant,				)

							)

		v.					)  Cause No. 48S00-9706-CR-367

							)

STATE OF INDIANA,				)

							)

	Appellee.					)

APPEAL FROM THE MADISON SUPERIOR COURT

The Honorable Dennis D. Carroll, Judge

Cause No. 48D01-9601-CF-17

August 178, 1998

SHEPARD, Chief Justice.

	A jury convicted Timothy D. Elsten of murder, a felony;,1 and invasion of privacy, a cClass B misdemeanor.2  The court sentenced him to sixty-five years for murder, followed by 180one hundred eighty-

days for the misdemeanor.

	OIn this direct appeal, Elsten raises four issues:

I. Whether the trial court erred by admitting a portion

of his videotaped statement to police;

II. Whether the court’s refusal to grant a change of

venue was erroneous;

III. Whether the court improperly admitted evidence

seized from a vehicle he drove; and

IV. Whether the court erred by failing to accept his plea

of guilty but mentally ill during the trial.

	Facts

	The evidence most favorable to the verdict shows that on

January 13, 1996, Timothy Elsten followed his estranged wife, Diana

Elsten, into a retail store in Anderson, Indiana.  Diana told him

to leave her alone, but he continued to follow her.  When she asked

a store employee to contact security, he grabbed her, pulled out a

gun, and placed it against her temple.  As she begged him not to

shoot, he pulled the trigger, but the gun misfired.  Diana then

broke loose and ran from him.  Timothy gave chase and fired three

more shots, one of which struck her in the face and the another in the

back.  Diana died from a bullet wound to the back.  

	I.  Admission of Videotaped Statement

	Elsten objects to the admission of his videotaped statement to

police.  He contends the questioning was improper because it

continued after he requested counsel, in violation of the Fifth and

Fourteenth Amendments of the U.S. Constitution.  

	A criminal suspect has a right to the advice and presence of

counsel during custodial interrogation by police.  Mayberry v. State, 670 N.E.2d 1262, 1269 (Ind. 1996), reh'g. denied, (citing Miranda v. Arizona, 384 U.S. 436 (1966)).  Although a suspect can intelligently and voluntarily waive this right, it may be

reasserted at any time during questioning.  Sleek v. State, 499 N.E.2d 751, 755 (Ind. 1986) (citing Miranda, 384 U.S. at 444-45).  In such cases, the interrogation must stop until counsel is

provided or the suspect voluntarily re-initiates communication. 

Pilarski v. State, 635 N.E.2d 166, 169 (Ind. 1994) (citing Edwards v. Arizona, 451 U.S. 477 (1981); Oregon v. Bradshaw, 462 U.S. 1039 (1983)).

	Elsten claims his Miranda rights were violated when police interrogated him after three separate requests for counsel. He

fails to mention, however, that the trial court redacted the

videotape so that the only statements presented to the jury were

those made between the signing of the waiver and his first request for counsel.3  It also admonished the jury not to speculate what occurred after the tape stopped.  Thus, the only question is

whether Elsten made these initial statements while knowingly and

voluntarily waiving his right to counsel.  This decision is within

the sound discretion of the trial court.  Jones v. State, 655 N.E.2d 49, 56 (Ind. 1995).

	The record reveals that Police Detective Sellars advised

Elsten of his rights and asked if he understood them.  He answered

affirmatively and signed the waiver.  Sellars then proceeded with

the interrogation.  At no time between his first request for

counsel and his signing of the waiver was he coerced or forced to

talk.  These facts suggest a voluntary statement to police. The

trial court appropriately admitted the redacted tape.

	II.  Request for Change of Venue

	Elsten claims the trial court erred by denying his motion for

change of venue.  He alleges that publicity surrounding the case

was so prejudicial as to deny him a fair trial.  Although the court

failed to rule on this motion, it conducted individual voir dire of 

the perospective jurors.  For our purposes, we will deem the motion

denied.

	A trial court’s denial of a change of venue motion will be

reversed only for an abuse of discretion.  Davidson v. State, 580 N.E.2d 238, 244 (Ind. 1991) (citing Linder v. State, 456 N.E.2d 400 (Ind. 1983)).  Showing potential juror exposure to press coverage

is not enough.  Barnes v. State, 693 N.E.2d 520, 524 (Ind. 19978) (citing Ind. Code Ann. § 35-37-1-5(cb) (West 1993)).  Instead, the

defendant must demonstrate that the jurors were unable to disregard

preconceived notions of guilt and render a verdict based on the

evidence.  Id. at 524-25.   (citing Drummond v. State, 467 N.E.2d 742 (Ind. 1984)).  An abuse of discretion does not occur where voir dire reveals that the seated panel was able to set aside

preconceived notions of guilt and render a verdict based solely on

the evidence.  Lindsey v. State, 485 N.E.2d 102, 106 (Ind. 1985).

	During the individual voir dire of the potential jurors in

this case, each was asked about exposure to pretrial publicity and

whether each could serve fairly and impartially.  After five

potential jurors indicated that they could not, the trial court

dismissed them for cause upon defense counsel’s request.  All of

the impaneled jurors, however, answered that they could function

impartially to render a verdict based solely upon the evidence

presented.  Because Elsten has not shown any other evidence of

prejudice arising from publicity, we conclude that his right to a

fair trial was not denied by conducting the trial in Madison County.

III. Evidence Seized from Vehicle Search

	Next, Elsten claims the court improperly admitted evidence

seized illegally from a vehicle he drove on the day of the

shooting.  The vehicle belonged to his mother, who voluntarily

consented to a search after the vehicle was impounded by police. 

Although the consent form stated that the search would occur on

January 15, 1996, police did not conduct the search until January

18, 1996.  Elsten says the three-day delay exceeded the scope of

his mother’s consent, and thus, was an illegal search and seizure. 

See, e.g., United States v. Dichiarinte, 445 F.2d 126, 129-30 (7th Cir. 1971) (consent to search for narcotics does not include a

search through personal papers).

	As a threshold matter, Elsten must have standing to raise the

constitutionality of the search and seizure--that is, a reasonable

expectation of privacy in the property being searched.  Brown v. State, 691 N.E.2d 438, 443 (Ind. 1998).  He contends, citing United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), that such an expectation exists because he was a permissive user of the vehicle. 

Although it is unclear whether the facts of this case support that 

assertion, the State does not contest the issue.  Therefore, we will assume that Elsten has standing to raise this claim.

	Nonetheless, this assumption reflects the difficult nature of

Elsten’s contention.  Plainly, as he points out, there are some

cases in which temporal limits on a defendant’s consent must be 

honored because a late search can affect his rights.  See, e.g., State v. Brochu, 237 A.2d 418, 421 (Me. 1967) (defendant gave consent as a victim, but police conducted search after he became

the accused).  

	Likewise, our courts have found unreasonable searches where

the search warrant was stale, see Ashley v. State, 251 Ind. 359, 367-68, 241 N.E.2d 264, 269 (1968) (search warrant for small

amounts of marihuana becomes stale after eight days because of its

transitory nature as a commodity), or where police exceeded space

limitations of defendant’s consent, see  Covelli v. State, 579 N.E.2d 466, 472-73 (Ind. Ct. App. 1991) (search of handbag

continued after police found the object of their search; thus,

search exceeded scope of the consent); Deckard v. State, 425 N.E.2d 256, 257 (Ind. Ct. App. 1981) (consent to search for narcotics does

not extend to search for a knife).  Cf. Williams v. State, 426 N.E.2d 662, 667 (Ind. 1981) (burned belongings of a victim are not

likely to be moved; therefore, an affidavit supporting the warrant

was not stale after sixty-days).

	These cases do not seem to compel the conclusion that Elsten’s rights were violated.  Here, the vehicle seized and searched was

not the defendant’s property, nor has he shown a right to exercise

control over it.  Further, there is no evidence that the delay

affected his mother’s rights or her consent to search.  Indeed,

even if we assumed that his mother’s rights were violated, there is

no apparent prejudice that flowed to him as a result of this delay. 

We find no deprivation of Elsten’s Fourth Amendment rights.

	IV. Refusal to Accept Plea of Guilty

	Finally, Elsten maintains that the trial court erred by

refusing to accept his plea of guilty but mentally ill during the

trial.  The State counters that an insufficient factual basis

existed for the plea because there was no evidence of mental

illness.  We agree with the State.

	For a trial court to accept a plea of guilty but mentally ill,

a sufficient factual basis must exist for the decision.  Rhoades v. State, 675 N.E.2d 698, 700 (Ind. 1996) (citing Ind. Code Ann. § 35- 35-1-3 (West 1993)).  On appeal, we presume that the court’s

decision was correct and review only for an abuse of discretion.  Coomer v. State, 652 N.E.2d 60, 62 (Ind. 1995).

	After Elsten asked to plead guilty but mentally ill, the trial

court conducted a hearing to determine whether a sufficient factual basis existed for the plea.  The court had three reports from

clinical psychologists, two of which stated Elsten was not

suffering from psychological disorders.4  Upon reviewing the evidence and testimony, it concluded that the record was not

sufficient for him to accept the plea.  This was not an abuse of

the court’s discretion.  

	Moreover, had the trial court permitted Elsten to plead

guilty, he would have stood in the same place he stood after the jury rendered its verdict--convicted of murder and eligible to

argue mitigating circumstances like mental impairment to the

sentencing judge.  CompareSee Douglas v. State, 663 N.E.2d 1153, 1156 (Ind. 1996).

Conclusion

	We affirm the judgment of the trial court.

Dickson., Sullivan, Selby, and Boehm, JJ., concur.